McCoy v. Cassidy

• Decision Date: 26 November 1888
• Citation: 9 S.W. 926,96 Mo. 429
• Parties: McCOY v. CASSIDY.
• Court: Missouri Supreme Court

9 S.W. 926

96 Mo. 429

McCOY v. CASSIDY.

Supreme Court of Missouri.

November 26, 1888.

DEED — SEAL — ACKNOWLEDGMENT — RECORD — PRESUMPTION.

Where the copy of a sheriff's deed, as recorded, contains no seal, but the attestation clause recites that the deed is signed and sealed, it will be presumed that the original deed was sealed. Overruling Hamilton v. Boggess, 63 Mo. 233.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Ejectment by John McCoy against Thomas Cassidy. Judgment for defendant, and plaintiff appeals.

Lipscomb & Rust and Karnes & Ess, for appellant. C. O. Tichenor, for respondent.

NORTON, C. J.

This is an ejectment suit to recover possession of lots 23 and 24, block 38, in Turner & Co.'s addition to Kansas City. On the trial judgment was rendered for defendant, from which the plaintiff has appealed. Both parties claim through Samuel H. Woodson as the common source of title. Plaintiff, in support of his title, put in evidence a deed of said Woodson, dated July 27, 1863, conveying the premises in dispute to John C. McCoy; and also a quitclaim deed dated May 18, 1866, executed by said John C. McCoy, conveying the premises to John McCoy, the plaintiff. Defendant put in evidence the copy of a deed as recorded in the recorder's office of Jackson county on the 26th December, 1865. This deed was signed by the sheriff of Jackson county, and recites that by virtue of an execution which issued on a judgment rendered on the 13th of December, 1860, by the probate and common pleas courts of Jackson county against Samuel H. Woodson, he did expose to sale the real estate of said Woodson therein described, (including the lots in dispute,) and that, M. J. Woodson being the highest bidder, the same was sold to her for the price bid. The copy of this deed did not show that any seal was affixed thereto by the sheriff. The last clause in the deed, as copied, is as follows: "In witness whereof I, Henry H. Williams, sheriff of the county of Jackson, have hereunto set my hand and affixed my seal this 13th day of December, 1865. HENRY H. WILLIAMS, Sheriff." The certificate of acknowledgment, as copied, is as follows: "State of Missouri, County of Jackson — ss.: Be it remembered that on this 14th day of December, 1865, Henry H. Williams, sheriff of Jackson county, who is personally known to the court to be same person whose name is subscribed to the foregoing deed, personally appeared in open court, and acknowledged the foregoing instrument and writing to be his act and deed. Witness William T. Ranson, clerk of the circuit court, with the seal thereof hereto affixed, and ex officio clerk of the common pleas business of the probate and common pleas court, within and for the county aforesaid, at office in Independence, this 14th day of December, 1865. W. C. RANSON, Clerk, by N. B. MOORE, Deputy." An original deed made by the said sheriff, dated the 9th of October, 1879, was then put in evidence, containing substantially the same recitals contained in the copy offered in evidence, and differing from the copy in showing that it had the word "[Seal]" attached to the sheriff's signature. S. H. Woodson owned the land in controversy in 1860, when the judgment was rendered against him by the probate and common pleas court of Jackson county, and under which the sheriff sold it. The lien of a judgment, as the law was when said judgment was rendered, continued for five years, and as the levy upon and sale of the premises was made during the continuance of said lien her title will prevail over that of plaintiff, provided that the presumption can be indulged that the original deed had a seal attached, notwithstanding the fact that the copy of it, as recorded and in evidence, does not show that any seal was attached thereto. It is held in the following cases that when a certificate of acknowledgment to a deed, taken by an officer having an official seal, is copied by the recorder of deeds, and the copy does not show that a seal was attached to the certificate, the court will presume that the original certificate had the seal attached, provided it is stated in the body of the certificate, as copied, that the officer taking the acknowledgment affixed his seal: Geary v. City of Kansas, 61 Mo. 379; Norfleet v. Russell, 64 Mo. 177; Parkinson v. Caplinger, 65 Mo. 290; Addis v. Graham, 88 Mo. 199; Hammond v....